Selective Incorporation

Selective incorporation was a big issue in the mid-1850s in which the federal government questioned whether the Bill of Rights limited state governments as well as the national government. Could the Bill of Rights and the "privileges or immunities clause" be incorporated in the states as well? American federalism did a poor job of supporting incorporation. All the national government did was hold up incorporation as seen in the Barron v. Baltimore case of 1833. The city of Baltimore had disposed of so much sand and gravel into the water near Barron's wharf because of the paving of new roads. This brought the water level down and destroyed the value of Barron's land. Barron brought Baltimore to court saying that Baltimore broke the rights he had in the fifth amendment (right to property). The Supreme Court ruled that there is nothing Barron could do unless the national government took away his rights to property. This ruling made no sense. Why could a state or a city deprive a citizen of property? In Palko v. Connecticut, Palko was indicted on first-degree murder and also second-degree murder by a lower court. Connecticut was mad at the verdict and tried him twice in order to get a maximum sentence. Palko took Connecticut to court arguing that his rights to prevention of double-jeopardy were being denied. The Supreme Court claimed that double-jeopardy wasn't a right given to the states in the 14th Amendment. In Gitlow v. New York, the Supreme Court claimed that the right to freedom of speech was also decided by the states too. Basically, the government was saying that states could almost disregard the national Bill of Rights. This was a scary picture because people could flat out be denied their rights just because they lived in a particular state.